Appeal No. 1996-2947
Application 08/203,685
considers obviousness in the present tense and not as to how
and why it would have been obvious to the artisan within 35
U.S.C. § 103. As such, the examiner's expression of the
obviousness of the subject matter of claim 1 on appeal is
based upon prohibited hindsight.
Claim 1 on appeal presents structural distinctions,
principally in the form of the first and second conductive
spacer regions, which can not be explained away without
additional evidence beyond Okumura alone to convince us of the
obviousness of this claim on appeal, despite the examiner's
view of functional similarities to the end product.
Since we reverse the rejection of independent claim 1, we
also reverse the rejections of dependent claims 2 through 9.
Accordingly, the decision of the examiner is reversed.
REVERSED
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